Citation NR: 9722990
Decision Date: 06/30/97 Archive Date: 07/02/97
DOCKET NO. 95-11 165 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Whether an indebtedness to the Department of Veterans Affairs
(VA) resulting from an overpayment of additional compensation
benefits in the amount of $1,773.00 was properly created.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Ralph G. Stiehm, Associate Counsel
INTRODUCTION
The veteran had active service from December 1944 to February
1946. This case comes before the Board of Veterans’ Appeals
(Board) on appeal from an April 1994 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan.
The issue of the veteran’s entitlement to a waiver of the
debt in question is referred to the RO for appropriate
disposition.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he is not liable for amounts
received for a dependent during the period prior to his
notification to the VA of his marriage to his second wife,
but after the date of that marriage.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the indebtedness arising from
the overpayment of additional compensation benefits in the
amount of $1,773.00 was properly created.
FINDINGS OF FACT
1. The veteran has been in receipt of disability
compensation since his separation from service in February
1946; the veteran’s disability has at no time been evaluated
as less than 30 percent disabling.
2. The veteran married his first wife in July 1951; she died
in April 1985.
3. In December 1985, the veteran married his second wife.
4. The VA was not notified until July 1991 of the death of
the veteran’s first wife or of the veteran’s marriage to his
second wife.
5. The veteran received additional compensation, based upon
his marriage to his first wife, during the period extending
from the death of the first wife until the notification of
the VA in July 1991 of the existence of the second wife.
CONCLUSION OF LAW
The indebtedness arising from the overpayment of additional
compensation benefits in the amount of $1,773.00 was properly
created. 38 U.S.C.A. §§ 1115, 5110(f) (West 1991); 38 C.F.R.
§§ 3.4(b)(2), 3.401(b) (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran married his first wife in July 1951. She died in
April 1985, and in December 1985 the veteran married his
second wife. The veteran has been in receipt of disability
compensation since his separation from service in February
1946. At the time of his first wife’s death in April 1985 he
was also in receipt of an additional amount of compensation
based upon his marriage to her. He failed at that time to
report the death of his first wife to the VA and continued to
receive additional compensation based upon that marriage. In
July 1991, in response to a VA request for Social Security
information, the veteran submitted a Social Security Number
Solicitation that reflected the veteran’s marriage to his
second wife.
Thereafter, the RO determined that the veteran was not
entitled to additional amounts of compensation received for a
spouse after the date of death of the veteran’s first wife
but before July 1991, the point in time at which the veteran
apprised the VA of the existence of the second wife. The
veteran’s receipt of additional compensation during the time
frame in question resulted in the indebtedness the validity
of which is now at issue.
The veteran concedes that he is liable for additional
compensation received after the death of his first wife, but
prior to his marriage to his second wife. He contends,
however, that he should not be liable for amounts received
after his second marriage because, although he did not
formally apply for additional compensation based upon his
marriage to his second wife prior to July 1991, nevertheless,
legally he was entitled to receipt of such compensation.
Additional amounts of compensation may be payable for a
spouse where the veteran is entitled to compensation based
upon on a disability evaluated as 30 percent disabling.
38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b)(2). Although the
veteran’s disability is, in fact, evaluated as 30 percent
disabling, entitlement to additional compensation requires
notification of the VA as to of the spouse’s existence. In
this respect, 38 C.F.R. § 3.401(b) prescribes as an effective
date for claims for additional compensation for dependents
the latest of the following dates:
(1) Date of claim. This term means
the following, listed in their order of
applicability:
(i) Date of veteran’s marriage, or
birth of his or her child, or, adoption
of a child, if the evidence is received
within 1 year of the evident; otherwise[]
(ii) Date notice is received of the
dependent’s existence, if evidence is
received within 1 year of the Department
of Veterans Affairs request.
(2) Date dependency arises.
(3) Effective date of the qualifying
disability rating provided evidence of
dependency is received within 1 year of
notification of such rating action.
See also 38 U.S.C.A. § 5110(f).
The veteran’s entitlement to compensation based upon his
marriage to his first wife terminated upon her death. In
order to be entitled to benefits based upon his marriage to
his second wife, the veteran was required to notify the VA of
his second marriage. Because the veteran did not notify the
VA of this second marriage until July 1991, he is not
entitled to additional compensation based upon his marriage
to his second wife prior to July 1991, the date the VA was
notified the veteran’s change of status.
It is apparent that the appellant feels that he has been
unfairly deprived of benefits. However, the law is clear and
precludes eligibility in this case. Where the law is
dispositive, the claim should be denied because of the
absence of legal merit. Sabonis v. Brown, 6 Vet.App. 426
(1994). Therefore, the Board has no alternative but to deny
the appellant's claim. The Board observes, furthermore, that
its decision on the issue before it does not preclude the
veteran from pursuing a waiver of the indebtedness in
question. See 38 U.S.C.A. §§ 5107, 5302; 38 C.F.R. §§ 1.962,
1.963, 1.965.
ORDER
The appeal is denied.
BRUCE KANNEE
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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